Non-international armed conflict

Introduction

From a humanitarian point of view, the victims of non-international armed conflicts should be protected by the same rules as the victims of international armed conflicts. They face similar problems and need similar protection. Indeed, in both situations, fighters and civilians are arrested and detained by “the enemy”; civilians are forcibly displaced; they have to flee, or the places where they live fall under enemy control. Attacks are launched against towns and villages, food supplies need to transit through front lines, and the same weapons are used. Furthermore, the application of different rules for protection in international and in non-international armed conflicts obliges humanitarian players and victims to classify the conflict before those rules can be invoked. This can be theoretically difficult and is always politically delicate. To classify a conflict may imply assessing questions of jus ad bellum. For instance, in a war of secession, for a humanitarian actor to invoke the law of non-international armed conflicts implies that the secession is not (yet) successful, which is not acceptable for the secessionist authorities fighting for independence. On the other hand, to invoke the law of international armed conflicts implies that the secessionists are a separate State, which is not acceptable for the central authorities.

However, States, in the international law they have made, have never agreed to treat international and non-international armed conflicts equally. Indeed, wars between States have until recently been considered a legitimate form of international relations and the use of force between States is still not totally prohibited today. Conversely, the monopoly on the legitimate use of force within its boundaries is inherent in the concept of the modern State, which precludes groups within that State from waging war against other factions or the government.

On the one hand, the protection of victims of international armed conflicts must necessarily be guaranteed through rules of international law. Such rules have long been accepted by States, even by those which have the most absolutist concept of their sovereignty. States have traditionally accepted that soldiers killing enemy soldiers on the battlefield may not be punished for their mere participation: in other words, they have a “right to participate” in the hostilities.[1]

On the other hand, the law of non-international armed conflicts is more recent. States have for a long time considered such conflicts as internal affairs governed by domestic law, and no State is ready to accept that its citizens would wage war against their own government. In other words, no government would renounce the right in advance to punish its own citizens for their participation in a rebellion. Such renunciation, however, is the essence of combatant status as defined in the law of international armed conflicts. To apply all the rules of the contemporary International Humanitarian Law (IHL) of international armed conflicts to non-international armed conflicts would be incompatible with the very concept of the contemporary international society being made up of sovereign States. Conversely, if ever the international community is organized as a world State, all armed conflicts would be “non-international” in nature and it would thus be inconceivable for combatants to have the right to participate in hostilities independently of the cause for which they fight, as foreseen in the law of international armed conflicts.

In recent years, however, the IHL of non-international armed conflicts has drawn closer to the IHL of international armed conflicts: through the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda based on their assessment of customary international law;[2] in the crimes defined in the ICC Statute;[3] because States have accepted that recent treaties on weapons and on the protection of cultural objects are applicable to both categories of conflicts;[4] under the growing influence of International Human Rights Law; and according to the outcome of the ICRC Study on Customary International Humanitarian Law.[5] This study comes to the conclusion that 136 (and arguably even 141) out of 161 rules of customary humanitarian law, many of which run parallel to rules of Protocol I applicable as a treaty to international armed conflicts, apply equally to non-international armed conflicts.

Theoretically, the IHL of international armed conflicts and the IHL of non-international armed conflicts should be studied, interpreted and applied as two separate branches of law – the latter being codified mainly in Art. 3 common to the Conventions and in Protocol II. Furthermore, non-international armed conflicts occur much more frequently today and entail more suffering than international armed conflicts. Thus, it would be normal to study first the law of non-international armed conflicts, as being the most important.

However, because the IHL of non-international armed conflicts must provide solutions to problems similar to those arising in international armed conflicts, because it was developed after the law applicable to international armed conflicts, and because it involves the same principles, although elaborated in the applicable rules in less detail, it is best to start by studying the full regime of the law applicable to international armed conflicts in order to understand the similarities and differences between it and the law of non-international armed conflicts. The two branches of law share the same basic principles, and analogies have to be drawn between them to flesh out certain provisions or to fill logical gaps. Similarly, only by taking the law of international armed conflicts as a starting point can one identify which changes must result, for the protective regime in non-international armed conflicts, from the fundamental legal differences between international and non-international armed conflicts. Finally, from the perspective of the law of international armed conflicts, there is a grey area not affected by those fundamental differences but in which States have refused to provide the same answer in the treaties of IHL. The practitioner in a non-international armed conflict confronted with a question to which the treaty rules applicable to such situations fail to provide an answer will either look for a rule of customary IHL applicable to non-international armed conflicts or search for the answer applicable in international armed conflicts and then analyse whether the nature of non-international armed conflicts allows for the application of the same answers in such conflicts. In any event, soldiers are instructed and trained to comply with one set of rules and not with two different sets.

The ICRC Study on customary international humanitarian law[6] has confirmed the customary nature of most of the treaty rules applicable in non-international armed conflicts (Art. 3 common to the Conventions and Protocol II in particular). Additionally, the study demonstrates that many rules initially designed to apply only in international conflicts also apply – as customary rules – in non-international armed conflicts. They include the rules relating to the use of certain means of warfare, relief assistance, the principle of distinction between civilian objects and military objectives and the prohibition of certain methods of warfare.

The fact that the IHL of non-international armed conflicts continues to be developed is certainly a good thing for the victims of such conflicts, which are the most frequent in today’s world, but it should never be forgotten that these rules are equally binding on government forces and non-State armed groups.[7] Therefore, for all existing, claimed and newly suggested rules of the IHL of non-international armed conflicts, or whenever we interpret any of these rules, we should check whether an armed group willing to comply with the rule in question is able to do so without necessarily losing the conflict.

In addition, it should be borne in mind that if a given situation or issue is not regulated by the IHL of non-international armed conflicts applying as the lex specialis, international human rights law applies, although possibly limited by derogations.

To conclude, it should be stressed that even in cases in which the IHL of international armed conflicts contains no detailed provisions or to which no analogies with that law apply, and even without falling back on customary law, the plight of the victims of contemporary non-international armed conflicts would be incomparably improved if only the basic black-letter provisions of Art. 3 common to the Conventions and of Protocol II were respected.

JUNOD Sylvie S., “Additional Protocol II: History and Scope”, in The American University Law Review, Vol. 33/1, Fall 1983, pp. 29-40.

KALSHOVEN Frits, “Applicability of Customary International Law in Non-International Armed Conflicts”, in CASSESE Antonio (ed.), Current Problems of International Law, Milan, Giuffrè, 1975, pp. 267-285.

KWAKWA Edward, The International Law of Armed Conflict: Personal and Material Fields of Application, Dordrecht, Kluwer, 1992, 208 pp.

The treaty-based law applicable to internal armed conflicts is relatively recent and is contained in common article 3 of the Geneva Conventions, Additional Protocol II, and article 19 of the 1954 Hague Convention on Cultural Property. It is unlikely that there is any body of customary international law applicable to internal armed conflict which does not find its root in these treaty provisions.

[Source: Commission of Experts appointed to investigate violations of International Humanitarian Law in the Former Yugoslavia. UN Doc. S/1994/674, para. 52]

II. Comparison of the legal regimes for international and for non-international armed conflicts

Readings

BARTELS Rogier, “Timelines, Borderlines and Conflicts: the Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts”, in IRRC, Vol. 91, No. 873, March 2009, pp. 35-67.

CRAWFORD Emily, “Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts”, in Leiden Journal of International Law, No. 20, 2007, pp. 441-465.

CRAWFORD Emily, “Blurring the Lines between International and Non-International Armed Conflicts: the Evolution of Customary International Law Applicable in Internal Armed Conflicts”, in Australian International Law Journal, Vol. 15 (2008), 2009, pp. 29-54.

Readings

Suggested reading:

KLEFFNER Jann K., “From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities: on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference”, in Netherlands International Law Review, Vol. 54, No. 2, 2007, pp. 315-336.

KLEFFNER Jann K., “The Notions of Civilians and Fighters in Non-International Armed Conflicts”, in BERUTO Gian Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, pp. 69-78.

SOLF Waldemar A., “The Status of Combatants in Non international Armed Conflicts Under Domestic Law and Transnational Practice”, in American University Law Review, Vol. 33/1, 1983, pp. 53-65.

2. However, the regime is closer to that of international armed conflicts if fighters (members of an armed group with a continuous fighting function) are not considered to be civilians:

and may therefore be targeted not only while directly participating in hostilities through specific acts but also – like combatants in international armed conflicts – as long as they do not fall into the power of the enemy or are otherwise hors de combat;

Readings

Suggested reading:

SOLF Waldemar A, “Development of the Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva, ICRC, The Hague, M. Nijhoff, 1984, pp. 237-248.

Ministry of Foreign Affairs of Denmark, “The Copenhagen Process on the Handling of Detainees in International Military Operations”, in Revue de droit militaire et de droit de la guerre, Vol. 3-4, No. 46, 2007, pp. 363-392.

Readings

Suggested reading:

JUNOD Sylvie S., “Additional Protocol II: History and Scope”, in American University Law Review, Vol. 33/1, 1983, pp. 29-40.

LYSAGHT Charles, “The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments”, in American University Law Review, Vol. 33/1, 1983, pp. 9-27.

4. Material field of application of the customary IHL of non-international armed conflicts

Readings

Suggested reading:

JAKOVLJEVIC Bosko, “Memorandum of Understanding of 27 November 1991: International Humanitarian Law in the Armed Conflict in Yugoslavia in 1991”, in Yugoslav Review of International Law, No. 3, 1991, pp. 301-312.

JAKOVLJEVIC Bosko, “The Agreement of May 22, 1992, on the Implementation of International Humanitarian Law in the Armed Conflict in Bosnia-Herzegovina”, in Yugoslovenska Revija za Medunarodno Pravo, No. 2-3, 1992, pp. 212-221.

CRAWFORD Emily, “Blurring the Lines Between International and Non-International Armed Conflicts: The Evolution of Customary International Law Applicable in Internal Armed Conflicts”, in Australian International Law Journal, Vol. 15, 2008, pp. 29-54.

SASSÒLI Marco, “The Legal Qualification of the Conflicts in the former Yugoslavia: Double Standards or New Horizons in International Humanitarian Law?”, in WANG Tieya & SIENHO Yee (eds), International Law in the Post-Cold War World: Essays in Memory of Li Haopei, Routledge, London, 2001, pp. 307-333.

SIVAKUMARAN Sandesh, “Identifying an Armed Conflict not of an International Character”, in STAHN Carsten & SLUITER Göran (eds), The Emerging Practice of the International Criminal Court, Leiden, Boston, M. Nijhoff, 2009, pp. 363-380.

STEWART James G., “Towards a Single Definition of Armed Conflict in International Humanitarian Law: a Critique of Internationalized Armed Conflict”, in IRRC, No. 850, June 2003, pp. 313-349.

Cases and Documents

the “global war on terror” [See supra Fundamentals, B) International Humanitarian Law as a Branch of Public International Law, III.International Humanitarian Law: a branch of international law governing the conduct of States and individuals, 1.Situations of application, e. The global war on terror]

CRAWFORD Emily, “Blurring the Lines between International and Non-International Armed Conflicts: the Evolution of Customary International Law Applicable in Internal Armed Conflicts”, in Australian International Law Journal, Vol. 15 (2008), 2009, pp. 29-54.

KALSHOVEN Frits, “Applicability of Customary International Law in Non-International Armed Conflicts”, in CASSESE Antonio (ed.), Current Problems of International Law, Milan, Giuffrè, 1975, pp. 267-285.

Readings

Suggested reading:

CASSESE Antonio, “The Spanish Civil War and the Development of Customary Law Concerning Internal Armed Conflicts”, in CASSESE Antonio (ed.), Current Problems of International Law, Milan, Giuffrè, 1975, pp. 287-318.

HOFFMANN Michael H., The Customary Law of Non-International Armed Conflict: Evidence from the United States Civil War, Geneva, ICRC, October 1990, 23 pp.

“Declaration on the Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-International Armed Conflicts”, in IRRC, No. 278, September-October 1990, 5 pp.

“Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-International Armed Conflicts”, in IRRC, No. 278, September-October 1990, pp. 383-403.

KWAKWA Edward, “Internal Conflicts in Africa: Is There a Right of Humanitarian Action?”, in African Yearbook of International Law, 1994, pp. 9-46.

VII. Necessity and limits of analogies with the law of international armed conflicts

Introductory text

First, in some cases the precise rule resulting from a common principle or from combining principles with a provision of the law of non-international armed conflicts or with simple legal logic can be found by analogy in rules which have been laid down in the much more detailed texts of the Conventions and Protocol I for international armed conflicts.[1]

Second, certain rules and regimes of the law of international armed conflicts have to be applied in non-international armed conflicts to fill gaps in the applicable provisions, to make the application of explicit provisions possible, or to give the latter a real chance of being applied.

For example, the law of non-international armed conflicts contains no definition of military objectives or of the civilian population. Such definitions are required, however, to apply the principle of distinction applicable in both types of conflict and the explicit prohibitions to attack the civilian population, individual civilians and certain civilian objects.[2] No fundamental difference between the regimes applicable to the two types of conflict precludes the application of one and the same definition.

Prohibitions or limitations on the use of certain weapons are a more difficult case. None of the relevant differences between the two categories of conflict could justify not applying in non-international armed conflicts prohibitions or restrictions on the use of certain weapons set out in the law of international armed conflicts. Yet States have traditionally refused to accept proposals explicitly extending such prohibitions to non-international armed conflicts. Fortunately, this trend has been reversed in recent codification efforts.[3]

A striking feature of the law of non-international armed conflicts is that it foresees no combatant status, does not define combatants and does not prescribe specific rights and obligations for them; its provisions do not even use the term “combatant”. This is a consequence of the fact that no one has the “right to participate in hostilities” in a non-international armed conflict (a right which is an essential feature of combatant status). Some authors conclude that the law of non-international armed conflicts does not protect people according to their status but according to their actual activities. If this is correct, on the crucial question of when a fighter (i.e. a member of an armed group with a fighting function[4] may be attacked and according to what procedures a captured fighter may be detained, no analogy could be made with the rules applicable in international armed conflicts to combatants and prisoners of war. Fighters could only be attacked if and for such time as they directly participate in hostilities and the admissibility of their detention would be governed, in the absence of specific rules of the IHL of non-international armed conflicts, by domestic law and International Human Rights Law.

Other authors and States consider that fighters may be attacked in non-international armed conflicts like combatants may be attacked in international armed conflicts, i.e. at any time until they surrender or are otherwise hors de combat. Some of those who promote this analogy also consider that captured fighters may be detained, like prisoners of war in international armed conflicts, without any individual judicial determination until the end of the conflict.

This controversy, which has important humanitarian consequences in non-international armed conflicts and armed conflicts which have both international and non-international components, shows that an analogy between international and non-international armed conflicts does not always lead to better protection for those affected by the conflict. It also raises the question of whether International Human Rights Law should not have a greater impact in non-international armed conflicts than in international armed conflicts, inter alia because the applicable IHL treaty rules are incomplete.

In any case, if civilians are to be respected in non-international armed conflicts as prescribed by the applicable provisions of IHL, those conducting military operations must be able to distinguish those who fight from those who do not fight, and this is only possible if those who fight distinguish themselves from those who do not fight. Detailed solutions on how this can and must be done are found, mutatis mutandis, in the law of international armed conflicts. In addition, it might be reasonable not to consider fighters as civilians (who may be attacked only if and for such time as they directly participate in hostilities), but this presupposes clear criteria and a real possibility to determine who is a fighter. On the other hand, in our view, captured fighters should not be detained by analogy to prisoners of war. On arrest, it is more difficult to identify fighters than soldiers of armed forces of another State. The correct classification can be made by a tribunal, which will only have its say if the arrested person is not classified as a POW.

Readings

Suggested reading:

CARILLO-SUÀREZ Arturo, “Hors de Logique: Contemporary Issues in International Humanitarian Law as Applied to Internal Armed Conflict”, in American University International Law Review, Vol. 15/1, 1999, pp. 1-150.

1. “Combatants” must distinguish themselves from the civilian population

Readings

Suggested reading:

FISCHER Horst, “Limitation and Prohibition of the Use of Certain Weapons in Non-International Armed Conflicts”, in Yearbook of the International Institute of Humanitarian Law (San Remo), 1989, pp. 117-180.

Cases and Documents

Footnotes

[1] Thus, one may claim that the prohibition of indiscriminate attacks as codified in Art. 51(5) and the precautionary measure laid down in Art. 57(2)(b) of Protocol I are necessary consequences of the principle of distinction, and the rules of Conventions I and IV as well as Protocol I concerning who may use, and in which circumstances, the distinctive emblem have to be taken into account when applying Art. 12 of Protocol II on the distinctive emblem.

VIII. Who is bound by the law of non-international armed conflicts?

Introductory text

From the point of view of the law of treaties, Art. 3 common to the four Geneva Conventions and Protocol II are binding on the States party to those treaties. Even those rules of the IHL of non-international armed conflicts considered customary international law would normally be binding only on States. The obligations of the States parties include responsibility for all those who can be considered as their agents. IHL must, however, also be binding on non-State parties in a non-international armed conflict – which means not only those who fight against the government but also armed groups fighting each other – because victims must also be protected from rebel forces and because if IHL did not respect the principle of the equality of belligerents before it in non-international armed conflicts, it would have an even smaller chance of being respected by either the government forces, because they would not benefit from any protection under it, or by the opposing forces, because they could claim not to be bound by it.

A first possibility to explain why armed groups are bound by IHL is to consider that when the rules applicable to non-international armed conflicts, which include the provision that those rules be respected by “each Party to the conflict,”[1] are created by agreement or custom, States implicitly confer on the non-governmental forces involved in such conflicts the international legal personality necessary to have rights and obligations under those rules. According to this construction, the States have conferred on rebels – through the law of non-international armed conflicts – the status of subjects of IHL; otherwise their legislative effort would not have the desired effect, the effet utile. At the same time, the States explicitly stated that the application and applicability of IHL by and to rebels would not confer on the latter a legal status under rules of international law (other than those of IHL).[2]

A second theory is to consider that armed groups are bound because a State incurring treaty obligations has legislative jurisdiction over everyone found on its territory, including armed groups. Those obligations then become binding on the armed group via the implementation or transformation of international rules into national legislation or by the direct applicability of self-executing international rules. Under this construction, IHL is indirectly binding on the rebels. Only if they became the effective government would they be directly bound.

Other possible explanations for the binding effect of IHL on rebel armed groups are: third, that armed groups may be bound under the general rules on the binding nature of treaties on third parties (this presupposes, however, that those rules are the same for States and non-State actors and, more importantly, that a given armed group has actually expressed its consent to be bound); fourth, that the principle of effectiveness is said to imply that any effective power in the territory of a State is bound by the State’s obligations; fifth, armed groups often want to become the government of the State and such government is bound by the international obligations of that State.

The precise range of persons who are the addressees of the IHL of non-international armed conflicts has been discussed in the jurisprudence of the two ad hoc International Criminal Tribunals.[3] Certainly, not only members of armed forces or groups, but also others mandated to support the war effort of a party to the conflict are bound by IHL. Beyond that, all those acting for such a party, including all public officials on the government side, must comply with IHL in the performance of their functions. Otherwise judicial guarantees, which are essentially of concern to judges, rules on medical treatment, which are equally addressed to ordinary hospital staff, and rules on the treatment of detainees, which also apply to ordinary prison guards, could not have their desired effect because those groups could not be considered as “supporting the war effort”. On the other hand, acts and crimes unconnected to the armed conflict are not covered by IHL, even if they are committed during the conflict.

As for individuals who cannot be considered as connected to one party but who nevertheless commit acts of violence contributing to the armed conflict for reasons connected with it, those perpetrating such acts are bound by the criminalized rules of IHL. If such individuals were not considered addressees of IHL, most acts committed in anarchic conflicts would be neither covered by IHL nor consequently punishable as violations of IHL. What is unclear is whether the many rules of IHL that are not equally criminalized cover all individual acts having a link to the conflict.

IX. Consequences of the existence of a non-international armed conflict on the legal status of the parties

Introductory text

Art. 3(4) common to the Conventions clearly states that application of Art. 3 “shall not affect the legal status of the Parties to the conflict”. As any reference to “parties” has been removed from Protocol II, a similar clause could not appear in it. However, Protocol II contains a provision clarifying that nothing it contains shall affect the sovereignty of the State or the responsibility of the government, by all legitimate means – legitimate in particular under the obligations foreseen by IHL – to maintain or re-establish law and order or defend national unity or territorial integrity. The same provision underlines that the Protocol cannot be invoked to justify intervention in an armed conflict.[1]

The application of IHL to a non-international armed conflict therefore never internationalizes the conflict or confers any status – other than the international legal personality necessary to have rights and obligations under IHL – to a party to that conflict. Even when the parties agree, as encouraged by Art. 3(3) common to the Conventions, to apply all of the laws of international armed conflicts, the conflict does not become an international one. In no case does the government recognize, by applying IHL, that rebels have a separate international legal personality which would hinder the government’s ability or authority to overcome them and punish them – in a trial respecting the judicial guarantees provided for in IHL – for their rebellion. Nor do the rebels, by applying the IHL of non-international armed conflicts, affect their possibility to become the effective government of the State or to create a separate subject of international law – if they are successful. Never in history has a government or have rebels lost a non-international armed conflict because they applied IHL. The opposite is not necessarily true.